When You Should File to Modify Spousal Support or Child Support

Today is the first of November. You probably knew that because last night was Halloween. The first day of the month is important for many reasons, like paying bills. But in California family law cases, the first is particularly important when it comes to changing child support and spousal support orders.

For child support, the importance can be found in Family Code section 3653, subd. (a), which makes any new child support order effective the date the request was filed with the court or some later date. So, for example, if someone filed a request today and the matter was heard on Dec. 18, the new order could be made retroactive to today’s date, creating a situation where an overpayment might exist (if support is lowered) or a situation where there were support arrears that had to be satisfied (if support is increased).

The same approach would apply if a request was filed with the court tomorrow. The earliest effective date would be Nov. 2. Except that would require the court to prorate the child support obligation for November, since something that is effective tomorrow would only cover 29 of the 30 days.

A judge, faced with a request that was filed tomorrow and a hearing on the same hypothetical date — Dec. 18– could decide to make the order effective Dec. 1. Thus, an entire month of higher or lower support could be lost. To avoid this problem, people should try to file their requests no later than the first. And, beware, the law is not that simple. There are exceptions regarding the rule of retroactivity for modification requests that are based on unemployment or military service. And certain modification requests require that the request be served on the other side –not just filed with the court– on the date of filing in order to make retroactivity possible all the way back to the date of the filing.

So, putting the unemployment and military issues aside, the best practices issue for modifying a child support order may be to both file and serve the request no later than the first of the month.

When it comes to spousal support, a similar approach is used. If spousal support is modifiable, the new order may be effective on a date no earlier than the date that the modification request is filed with the court. Again, take a look at Family Code section 3653, subd. (a). And again, there are special rules for modifications based on unemployment and military service.

Spousal support is different, however, in that some spousal support orders are made nonmodifiable either by the judge or by the parties, based on their agreement. The nonmodifiability may be with respect to the amount of the support or the duration. So, if your spousal support order is nonmodifiable at the time when you go back to court to file that modification request, forget everything I just said.